The First Amendment as Applied to the Arts

Introduction to the US Constitution and the 1st Amendment

The United States Constitution was written in 1789 in Philadelphia, Pennsylvania. It includes seven Articles that describe the organization and responsibilities of the government, both state and federal, citizen’s rights, and other issues. There are also twenty-seven amendments that were added to the US Constitution in the years between 1791 and 1992. The first ten amendments, all added in 1791, are known as the Bill of Rights. They give people individual rights, such as speech, religion, the right to bear arms, and the right to a fair trial, among many others (“Constitution of the United States,” 2023).^[1]

The 1st amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (“U.S. Constitution,” 2023).^[2]

One of the rights specified in the 1st amendment is freedom of speech. The idea of freedom of speech has also been interpreted to include freedom of expression. Freedom of expression includes many different possibilities other than actual words. Some examples have been wearing clothing that reflects a political opinion or burning the flag. Freedom of expression is an idea that existed even at the time of the Ancient Greeks and is considered essential in many societies (“Free Speech History,” n.d).^[3] One of the main reasons it is considered important is because of the right to criticize the government (“The First Amendment,” 2023).^[4] Each country has its own laws about Freedom of Speech. These rights are often part of human rights documents and are discussed in the Universal Declaration of Human Rights (1947) (“Robson,” 2023).^[5] In some countries, a person can be punished for criticizing the government or its leader. Some examples are Iran, Thailand, The Netherlands, and many others where the punishment can range from a fine to imprisonment (Woods, 2018).^[6]

Limitations of Freedom of Speech

The right to freedom of speech in the United States does, however, have certain limits. There are situations where speech and other forms of expression are punishable. One of these situations is when it is not the content of what is being said that is punished, but rather the way in which it takes place. For example, a person has the right to say the word “fire” but not to shout it in a crowded movie theater. This is because of the disruption and danger that would be caused. Similarly, a protest may be protected by the First Amendment, but not if it would disrupt traffic in an excessive way or if it becomes violent. These are “time, place, and manner restrictions.” However, there are other restrictions that are in fact based on the content, that is, what is actually being said. The main exceptions are obscenity, fighting words, incitement to riot, and in some cases, threats (Ruane, 2014).^[7] As will be discussed later on, there are also other exceptions that are relevant to literature and other art forms.

One early case (1919) related to the First Amendment is Schenck v. United States (“Schenck v. United States,” 2023),^[8] which allowed for the punishment of Charles Schenck, who distributed flyers that were against the draft during World War I. The US Supreme Court ruled that this behavior involved a “clear and present danger” of bringing about an evil that Congress had the right to prevent. This meant that Schenck’s actions were not protected under freedom of expression. This case was eventually overruled by the case Brandenburg v. Ohio in 1969, which changed the standard from a “clear and present danger” to a higher standard of only punishing action that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (“Brandenburg v Ohio,” 2023).^[9]

Fighting words (words likely to incite a violent reaction), incitement to riot, and credible threats (those that are likely to occur) are forms of expression that can be restricted by law, despite the 1st amendment, because of the dangers that can occur (“Elonis v. United States,” 2023).^[10] Other exceptions, such as obscenity, defamation, and slander also exist. Obscenity is material that may be considered offensive, and which does not have value. It is difficult to define this occurrence, and the courts have attempted to clarify what should be considered obscenity. One of the major cases on this topic is Miller v. California, 413 U.S. 15 (1973) (“Miller v California,” 2023).^[11]

In that case, the defendant was accused of violating a California state law that stated in part, “Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor

The US Supreme Court heard the case and decided to use a three-pronged (three-part) test:

1. whether the average person, applying contemporary “community standards,” would find that the work, taken as a whole, appeals to the prurient interest;
2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

An example of a form of expression that might be considered not to have value is some types of pornography.

The Application of the 1st Amendment to the Arts

 As can be seen, the 1st amendment is applicable to many parts of society, one of them being the arts. Art is considered important by many people because it allows artists to express themselves and represent societal and political issues at a certain time and place.

There are instances when a court, such as the US Supreme Court or a lower court, has to determine if a book, movie, painting, statue, or other art form is protected under the 1st amendment. These legal cases often begin when a group of people believe that access should be limited, either for the general public or certain people only, such as students. The courts must decide if the item in question has value as mentioned in the third prong of the Miller test and whether it is protected under the First Amendment.

As will be discussed, art can become controversial if it is considered obscene; racially, culturally, or otherwise offensive; or if it appears to violate copyright laws, which give the creator of a creative work the exclusive right to it.

Literature

There is a strong connection between the 1st amendment and literature. Instances of book banning or censorship have been a part of society for a long time, as early as in ancient China in 259 BC and Rome in 35 AD (“Free Speech History,” 2023).^[12] The first known instance of book banning in America occurred long before the US Constitution or the 1st Amendment existed. It was in 1637, with The New English Canaan by Thomas Morton. In this book, the author criticized the Puritans and their treatment of the Native Americans. The Puritans did not approve of the book and at that time, the way to limit access to a book was to prevent it from being printed or destroy copies already printed. Later on, The New English Caanan was still read and appreciated for its historical information (Klimek, 2023).^[13]

While there were many such instances, it was unusual for the US Supreme Court to be involved in book banning. However, Island Trees Union Free School District No. 26 v. Pico (1982) is a rare incident of a book-banning case being heard by the US Supreme Court. In the 1970’s the parents of students in a school wanted to have a number of books removed from the school library.  The books were on a wide variety of subjects, such as racism, drug addiction, Native Americans, and evolution. The School Board allowed seven of them to be removed and five students between the ages of 13 and 17 decided to sue for a 1st Amendment violation. The US Supreme Court justices had very differing opinions but discussed the rights of the school board as opposed to the freedom of speech rights of the students (Gilbard, 2023).^[14]

Book banning continues to be a major issue in schools and libraries. At this point, many of the books in question relate to issues of race, gender, and gender identity (Gilbard, 2023; Goldberg, 2022).^[15][16] Opponents of book banning believe that students should see the representation of all people and the possibility to learn the truth about history and current events.

One recent example of a book-banning incident took place in Llano, Texas, when twelve children’s books were removed from the public library. Several residents sued that this was a violation of their 1st amendment rights. A federal judge ordered that the books, which mostly were about race or LGBTQ issues, had to be returned (Rose, 2023).^[17]

In 2023,  President Biden decided to appoint a position at the Education Department to handle problems related to book banning (Vazques, 2023).^[18]

Visual arts

There is also a connection between freedom of expression and visual art, such as paintings and statues. Art is often used as a way to express the creator’s opinion on political and social issues. Often, there have been groups and individuals who considered that a piece of art should not be seen by the public. Some reasons for this are political, racial, religious, or moral. For a piece of art to be considered obscenity (and therefore not protected under the 1st amendment), it would have to be decided to have no artistic value (“Miller v. California,” 2023).^[19]

One example of a controversial work of art is at a school in San Francisco, where a mural was painted in 1936 by Victor Arnautoff. The mural, called “The Life of Washington”  shows scenes from the life of President George Washington. There was controversy about this because there are depictions of slaves and of President Washington pointing to a deceased Native American. Those who would like to see it removed believe that it may be traumatic for students and others. On the other hand, it is believed that the artist’s intent was to show that Blacks and Native Americans were vital parts of that period of history. The controversies began in the 1960s and continue until now (Aaron, 2019).^[20]

George Washington mural causing controversy in San Francisco

Judge overturns decision to cover San Francisco high school’s “Life of Washington” mural

 In another case, there is a mural at a Law and Graduate School in Vermont in which there is a mural that shows slavery. There were several issues in this situation. Students and administrators found the mural to be offensive. However, removing it could be a violation of the rights of the artist, as there is a federal law that protects their rights. Finally, it was decided that the mural could be covered as it would not modify or damage the mural to do so (Becker, 2023).^[21]

There are also situations in which it is possible to remove a piece of art from a public place. For example, several Confederate statues were removed from public places. These were statues of controversial figures from the time of the Civil War, in many cases as a response to the killing of George Floyd, a Black man, by police officers, in 2020 (Ortiz, 2020).^[22]

Music

Music is another form of artistic expression that can be protected by the First Amendment. One of the reasons a song or other piece of music is controversial is because of the fact that the lyrics can be used to express a political or social idea. In addition, there may be words that are considered profanity in the lyrics. There also can be issues about the right to perform, as freedom of expression, and also a determination about copyrights. The U.S. Copyright Office defines copyright as the exclusive legal right to a creative work, such as a song, film, or book (2023).^[23]  One such case, Campbell v. Acuff Rose Music was touched off in 1989 when the rap group, 2 Live Crew,  wrote a parody of the song “Oh, Pretty Woman” by Roy Orbison (Keppler, 2016).^[24]   A parody of a song is an imitation, often done in a humorous way. The company that owned the rights to the original song sued, but the US Supreme Court ruled in favor of 2 Live Crew, on the basis that a parody is protected under the First Amendment.  Coincidentally, 2 Live Crew had also been involved in other legal actions, at that time, related to possible obscenity charges (Keppler, 2016).^[25]

Movies/Television

There have been controversies about movies and the First Amendment ever since movies were first invented. For instance, a 1915 case called Mutual Film Corp. v. Industrial Commission of Ohio, in which a board could review films and could order the arrest of a person who showed a film that was not approved. A movie distributor, Mutual Film Corporation sued, arguing that this is a violation of freedom of speech, as well as a violation of the Interstate Commerce Clause (a part of the constitution that gives the Federal Government the right to regulate interstate commerce.) The US Supreme Court, at that time, allowed for the censorship. However, this case was overturned by another US Supreme Court case Joseph Burstyn v. Wilson (1952) (Pondillo, 2024).^[26]  This case involved an Italian short film called “The Miracle” which was very controversial from a religious point of view. There were many protests on both sides. The commissioner of Education removed the license to show the movie and the film distributor sued, with the argument that this was a First Amendment violation. The US Supreme Court heard the case and decided to overturn Mutual, ruling in favor of the appellant (Green, 2024).^[27]

Conclusion

As can be seen, the First Amendment has a definite connection to the arts. The right to create and to have access to books, visual art, music, and movies is important because it allows for the expression of beliefs including political and social ideas, and is connected to the right of students and the public as a whole, to learn and share these ideas. While these forms may seem very different, they can each be used to express thoughts, feelings, and ideas and are a significant part of most people’s lives.

About the author: Danielle Sapse is a professor in the Law department at John Jay College of Criminal Justice